Hunt v. State

474 Md. 89

252 A.3d 946

Ronnie HUNT

v.STATE of Maryland

No. 21, Sept. Term, 2020

Court of Appeals of Maryland.

June 7, 2021

Argued by Samuel Feder, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for Petitioner.

Argued by Derek Simmonsen, Asst. Atty. Gen. (Brian E. Frosh, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before: McDonald, Watts, Hotten, Getty, Booth, Biran, and Glenn T. Harrell, Jr., (Senior Judge, Specially Assigned), JJ.

Harrell, J.

It took Dorothy some time to discover that the reputation of the "all-powerful" Wizard of Oz was not precisely as advertised. Perhaps, had she exercised some diligence in vetting him on the front-end of their encounter, she might have spared herself and her traveling companions the misadventures suffered at the hands of the Wicked Witch of the West (and her flying monkeys) at her castle. Nonetheless, no one dare fault her for relying initially on the accreted high opinion of the Wizard.

There seems to us some similarities between Dorothy's and the Wizard's relationship and this case. Unfortunately, the consequences of the late Joseph Kopera's deception of Maryland's courts, the Bar, and defendants for decades in a host of criminal cases in which he testified for the State as an "expert" in the field of firearms ballistics, based in part on later-discovered falsities in his academic curriculum vitae, have not proved to be resolved easily by legal wizards.¹ In an effort to cut through at least a strand of the larger Gordian Knot left in the wake of the 2007 discovery of Kopera's misrepresentations, we shall adopt a somewhat outside-the-lines resolution of the present case in order to clear a path for Maryland courts to get more quickly to the more taxing question of whether Kopera's deceit, once discovered, created, under Maryland's actual innocence statute, "a substantial or significant possibility that the result [of the trial] may have been different." Md. Code (2001, 2018 Repl. Vol.), Criminal Procedure Article ("CP"), § 8-301(a)(1)(i). We shall hold that, in this case and in all similarly situated "Kopera cases," trial counsel were not expected reasonably to uncover Kopera's deception before 2007, in the absence of specific information that should have put counsel on inquiry notice to investigate sooner Kopera's background.

BACKGROUND

This is the second time we have considered the actual innocence petition of Petitioner, Ronnie Hunt. In the previous iteration of this case, we held that Hunt was entitled to a hearing on his petition in the Circuit Court for Baltimore City. State v. Hunt , 443 Md. 238, 116 A.3d 477 (2015) (" Hunt I "). In the present iteration, we are asked to determine whether the alleged newly discovered evidence underlying his claim, that is, the belated discovery that the State's ballistics expert, Joseph Kopera, had testified falsely in 1991 at Petitioner's trial about his educational background and experience, could not have been discovered reasonably in time to move for a new trial under Maryland Rule 4-331,² as required under Maryland's actual innocence statute, which provides in relevant part:

(a) A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that:

(1)(i) if the conviction resulted from a trial, creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; or

(ii) if the conviction resulted from a guilty plea, an Alford plea, or a plea of nolo contendere, establishes by clear and convincing evidence the petitioner's actual innocence of the offense or offenses that are the subject of the petitioner's motion; and

(2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.

CP § 8-301(a).³

We refer to Hunt I for context:

Following a jury trial spanning several days in September of 1991, Ronnie A. Hunt, Jr. ("Hunt") was convicted on 25 September 1991 in the Circuit Court for Baltimore City of first-degree murder and use of a handgun in the commission of a crime of violence. The jury found that Hunt, along with his co-defendant, Harry Johnson, III, on 10 April 1991 shot to death Sheldene Simon on the front lawn of the victim's home in Baltimore during a gunfight involving multiple shooters. Hunt was sentenced to life imprisonment for murder, plus a consecutive twenty years for the handgun offense. Hunt's convictions were affirmed in 1993 by the Court of Special Appeals on direct appeal in an unreported opinion.

Hunt I , 443 Md. at 242, 116 A.3d at 479.

Hunt sought unsuccessfully postconviction relief. Thereafter, on 30 September 2010, Hunt, having become aware of the revelation in 2007 of the scandal surrounding Kopera's perjured testimony in hundreds⁴ of criminal trials, filed pro se a petition for writ of actual innocence in the circuit court, which he amended several months later. Hunt's first amended petition⁵ averred, among other things, "that his federal Constitutional Rights to due process and equal protection of the law afforded under the Fifth and Fourteenth Amendments were denied him ‘based on false evidence.’ " Hunt I , 443 Md. at 243, 116 A.3d at 479-80. Hunt described the discovery, by an attorney working for the Innocence Project, of Kopera's false testimony in numerous criminal trials concerning his credentials. See id. at 243-44, 116 A.3d at 480 (quoting in detail Hunt's first amended petition). He maintained further that "Kopera's testimony in his capacity as the State's ballistics expert was the State's " ‘only evidence’ against him and ‘the linch pin in the State's case’." Id. at 244, 116 A.3d at 480. He concluded, had Kopera's "fake credentials and/or false testimony" been known, "it is reasonably probable that the outcome of the trial would have been different[,] because his testimony probably would not have been as credible." Id.

The circuit court denied Hunt's first amended petition, without a hearing, on the ground that it "fail[ed] to state a claim or assert grounds for which relief may be granted pursuant to [ § 8-301(a) ]." Hunt (self-represented) appealed,⁶ and the Court of Special Appeals, in an unreported opinion that relied upon Douglas v. State , 423 Md. 156, 31 A.3d 250 (2011), reversed and remanded for a hearing. Hunt v. State , No. 162, Sept. Term, 2011 (filed 20 June 2014) (per curiam). The State sought further review by means of a petition for writ of certiorari. State v. Hunt , 440 Md. 225, 101 A.3d 1063 (2014). We granted the writ and affirmed the judgment of the intermediate appellate court. Hunt I , 443 Md. 238, 116 A.3d 477 (2015). The matter was remanded to the circuit court for a hearing.

Upon remand, Hunt, now represented by counsel,⁷ filed a second Amended Petition for Writ of Actual Innocence, alleging:

Petitioner's petition for a writ of actual innocence is based on the evidence that the State's expert witness in ballistics analysis who testified at his trial, Joseph Kopera, lied about his academic credentials while under oath in that trial and on countless prior occasions.⁸ This evidence could not have been discovered through due diligence in time to move for a new trial pursuant to Md. Rule 4-331.

* * *

Mr. Kopera lied while under oath at Petitioner's trial that he had earned "a degree in mechanical engineering from the University of Maryland and also an engineering degree from the Rochester Institute of Technology." This evidence was discovered in 2007 by a post conviction lawyer [in an unrelated case] who investigated Mr. Kopera's academic credentials while representing a client whose convictions were partly based on his expert witness testimony.

The evidence that Mr. Kopera lied for decades about his academic credentials could not have been discovered in time to move for a new trial pursuant to Md. Rule 4-331 in light of the totality of the circumstances and the facts known to Petitioner. Those circumstances and facts included the enduring presumption that the State will present truthful testimony and exculpatory evidence, Mr. Kopera's long-standing reputation as a competent ballistics expert, and the helpful evidence that he presented in Hunt's case. Petitioner relied on that reputation and that evidence to shape his defense theory, which was to present alternative suspects for the crimes with which he was charged. Petitioner cannot be expected to have found Mr. Kopera's lies amid circumstances that contrast markedly with the conditions surrounding their incidental discovery in a radically different legal context.

Second Amended Petition, filed 6 February 2017, at 5-6 (citation and quotation omitted).⁹

Following a hearing, the circuit court denied Hunt's second amended petition on the sole ground that Kopera's false testimony concerning his credentials was not newly discovered evidence. The circuit court did not address whether Hunt had demonstrated a "substantial or significant possibility" that, but for Kopera's perjured testimony, the outcome of his trial may have been different. We quote from the circuit court's memorandum opinion:

Although the Petitioner submitted very little actual evidence about the discovery of Kopera's false credentials, the Court finds that it is well established that Kopera's false credentials were discovered in 2007 during postconviction litigation in the case of Kulbicki v. State in the Circuit Court for Baltimore County. The attorney representing Kulbicki obtained Kopera's curriculum vitae and then attempted to verify Kopera's academic credentials. Such actions were clearly the exercise of due diligence. ...

Did these actions require some Herculean effort? No. The Petitioner introduced a letter from the University of Maryland sent

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